Notice served by affixture without independent person being witness is invalid

WG. CDR. Sucha Singh Vs. ITO (ITAT Delhi)

it is undisputed that the property located at 123, Hargobind Enclave, Delhi was sold by the assessee during assessment year 2008-2009. It is also undisputed that the return of income for assessment year 2009-2010 was filed by the assessee on 4-9-2009 whereas the notice under section 143(2) was dated 14-9-2009 and was served by affixture on 24-9-2009 and, thus, the last known address before the issue of service of notice was H-234, Naraina Vihar, Naraina, New Delhi i.e. the address mentioned in the return of income for assessment year 2009-2010. The remand report of the assessing officer also admits that all the notices under section 143 (2) remained un-served.

Thus, the service of the very first notice has, undisputedly, been done by way of affixture whereas order V, rule 12 of CPC provides that wherever it is practicable, service has to be effected on the defendant in person or on his agent. Order V, rule 17 of CPC further provides that the affixture can be done only when the assessee or his agent refuses to sign the acknowledgement or cannot be found.

Thus, for resorting to affixture, efforts have to be made to serve the notice upon the assessee and only after reaching a finding that the notice cannot be served upon the assessee, the mode of affixture can be resorted to.

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